Employer Cannot Require a Worker to Commit an Illegal Act

There is no statute in Texas protecting workers from being forced to commit illegal acts. So, prior to 1985, if your employer told you to rob the local bank and you refused, you could have been fired. But, now there is judge-made law in the form of Sabine Pilot v. Hauck, 687 S.W.2d 733 (1985) that found protection for a worker being forced by an employer to commit an illegal act. See decision. In the 20 years plus since the decision was issued, the courts have established that a Sabine Pilot action applies to laws involving criminal actions. If an employee is asked to commit a criminally illegal act, then that employee is protected from adverse action by the employer. But, we did not know whether this protection would be based on contract or tort law. If it is based on tort, then it would provide for emotional suffering type damages and punitive damages.

Now, we learn that a Sabine Pilot lawsuit is indeed based on tort. According to the recent Texas Supreme Court decision in Safeshred v. Martinez, No. 10-0426 (Tex. 4/20/12), it is based on tort or personal injury actions. So, punitive damages are available. See decision. The Supreme Court, never friendly to plaintiffs, found that to award punitive damages, a plaintiff must show more than the termination for refusal to commit an illegal act. The plaintiff must show specific intent to cause harm to the plaintiff apart from the termination itself. The court provides an example where the employer circulates false rumors about the employee so as to prevent him from finding future employment or makes looking for future employment more difficult than it ought to be. In those situations, says the Supreme Court, the employee would be entitled to seek punitive damages.

So, that means firing an employee for refusing to commit an illegal act is not in itself enough to justify punishment. The Supreme Court is saying there must be something more. For example, in the Martinez case, Louis Martinez drove a truck between San Antonio, Austin, Dallas and Houston everyday for Safeshred. Prior to each haul, he was required to conduct pre-inspections of his truck. He consistently discovered safety violations of his vehicle. But, he was always told to drive the truck anyway. On one trip, he was cited by DPS for improperly secured cargo – because the straps were worn or cut. DPS told him not to drive the truck again. Mr. Martinez explained what happened and showed the citation to Safeshred. But, again he was told to drive. Finally, prior to a fourth trip with the defective truck, the driver objected again to driving with an unsafe load. Mr. Martinez was told to drive the truck or go home. He went home.

The Supreme Court found this evidence of disregard for public safety by Safeshred was not enough. Title VII discrimination cases would require some evidence of malice or "reckless indifference" to the law. I would think Safeshred’s repeated indifference to public safety would be enough to justify punitive damages. A jury clearly thought so.

Louis Martinez filed suit. The jury found for the truck driver and awarded him $7,569 in lost wags; $10,000 in mental anguish; and $250,000 in punitive damages. The trial judge reduced the $250,000 to $200,000 due to caps on such damages. The court of appeals reversed the mental anguish finding.

Due to this Texas Supreme Court decision, the $200,000 is removed from the verdict. It is as if the $200,000 was never awarded. A company that committed some dangerous acts, putting motorists in some peril on the highway at least three times will in the end, pay no more that $7,569.

About

Thomas J. Crane focuses on cases involving wrongful conduct by the employer. He has been practicing employment law for 20 years. He had his own law practice in San Antonio for many years prior to being called to active duty.